It took more than a year for Chicago police – under pressure from the media and the public – to release video footage of the 2014 shooting that left Laquan McDonald dead, 16 bullets in his body. When a judge finally insisted the video be released, it cast major doubt on the police department’s version of events.
As witnesses and family members had maintained all along, the video showed that McDonald hadn’t lunged at police with a knife. He did have a knife and had slashed a tire on the police cruiser, but then began walking away. In the video, which was from a police dashboard camera, it looked as though the 17-year-old had been gunned down without provocation. Officer Jason Van Dyke has been charged with first-degree murder.
The long delay in the video’s public release points to a broader question that has vexed many police departments, civil liberties advocates and elected officials: Under what circumstances should footage from police body and dashboard cameras be made public, and how much?
The question has become more pressing with the Obama administration’s award of more than $41 million in the past two years to help law enforcement agencies buy body cameras for officers. The purpose, outgoing Attorney General Loretta Lynch has said, is to “build upon efforts to mend the fabric of trust, respect and common purpose that all communities need to thrive.”
But the grant money came with little guidance about how localities should handle the resulting requests for the public release of hundreds of hours of video footage. Are these ordinary public records that would be disclosed under most state public records laws? How do agencies protect private information – such as bystanders’ identities – that in documents might be blacked out?
More than 60 jurisdictions in over half the states and the District of Columbia have adopted body cameras, but many almost immediately restricted public access to the footage. The types of limits range widely, but some states – including Kansas, Missouri, North Carolina and South Carolina – make it nearly impossible to release footage. Florida has enacted restrictions that give wide leeway to law enforcement agencies to withhold footage from the public, saying videos shot in private settings or those in which the subject has a “reasonable expectation of privacy” can be exempted from public disclosure. Other states are trying to craft similar exemptions.
“This is an area that is difficult,” said Rachel Levinson-Waldman, senior counsel at the Brennan Center for Justice at the New York University School of Law, which is tracking police body camera use. “It raises knotty questions about the tensions between privacy and the values of public disclosure.”
In Baltimore, which is in the process of outfitting about 1,400 officers with body cameras, officials hope the devices will help explain police actions more clearly, even as the city has been roiled by an incident that was only partially caught on camera. It was a civilian with a cellphone who shot video of police loading 25-year-old Freddie Gray into the back of a police van in April 2015. Gray later died of injuries while in police custody, prompting a series of failed prosecutions and citywide protests.
The pressure to place body cameras on law enforcement officers grew in part from the proliferation of civilian videos from smartphones documenting police conduct up close and in real time. Civil liberties advocates say police abuse exposed by such videos is not new, but it had been almost impossible to document before everyone had the technology in their pockets.
Cameras’ presence may affect behavior
Police body and dashboard cameras provide additional proof of abuse overcoming ambiguities common in police-civilian disputes. The videos also can be useful to police, who can use them to prove that accusations against them are untrue, and, perhaps more significantly, as investigative tools.
And in theory, though still largely undocumented, the threat that video footage could be made public can affect, and possibly improve, both police and civilian behavior.
A study conducted over 12 months in 2012 and 2013 by the Rialto, California, police chief found that when police and civilians know they are being filmed, everyone behaves more calmly, and use of force is less common. A 2015 survey of the state of research on body cameras’ impact on behavior and public disclosure of footage, by the Center for Evidence-Based Crime Policy at George Mason University in Virginia, suggests that much more information is needed to measure the effectiveness of body-worn cameras and public disclosure.
That survey concluded: “The need for more research in this area is paramount, as the adoption of (body-worn cameras) will likely have important implications for police-citizen interactions, police management and budgets, safety and security, citizen privacy, citizen reporting and cooperation with police, and practices in the courts.”
Still, one thing is certain: The body camera clipped to an officer’s clothing has vastly improved the quality and clarity of police videos. While many departments have had dashboard cameras for several years, the body camera, usually pointed at the person with whom the officer is interacting, provides clearer images, more close-ups and better audio.
Yet it’s unclear whether the Obama administration’s professed goal of using these cameras to provide greater transparency and police accountability will be realized. The incoming administration of President-elect Donald Trump and his attorney general nominee, U.S. Sen. Jeff Sessions, R-Ala., have staked out a distinctly pro-police platform with local control preferred over federal involvement, leaving it likely that decisions about publicly releasing body camera footage will be made by state legislatures, city councils, county officials, police chiefs and sheriffs.
During the campaign, Trump filled out a questionnaire from the Fraternal Order of Police. He was asked specifically about body cameras and whether his administration would guarantee that footage would not be used to discredit officers’ privacy or reputations, particularly during contract negotiations with police unions. Trump answered:
“The federal law enforcement agencies that will be using Body-Worn Cameras will do so with the proper balance between good management and protection of privacy. Abuse of power is never tolerated, whether such actions are taken by individual officers in the performance of their duties or by supervisors following up on procedure and protocol.”
While many jurisdictions have obtained U.S. Department of Justice grant money, the New York Police Department has been a slow adopter. In 2013, after a federal judge said the 35,800 officers’ use of stop and frisk was unconstitutional, the department was ordered to set up a body camera pilot program, but it still has not done so.
And with restrictions on disclosure coinciding with the use of the body cameras, questions have arisen about what police will do with all the footage and whether retaining it solely for investigations meets the goals of the grants.
“Is it just another evidence tool for police, and not a tool for police accountability?” said Sarah Lustbader a former public defender in the Bronx, N.Y. “This is a contrast to what the public is expecting.”
Carlton T. Mayers II, policy counsel for the NAACP Legal Defense and Educational Fund, said the public should be able to get data that police can cull from the videos about who is getting stopped by police, as well as where and why they are being stopped, and have that data sorted by race and gender. That way, he said, the public can assess whether there is any illegal profiling.
“We have been pushing to condition data collection … on having it be publicly reported,” he said. “The data belong to the community.”
There is also debate over whether the body-camera videos tell a complete story of what happened. What is recorded can vary greatly depending on the camera angle, lighting and sound quality and whether an officer is narrating the video as it is recorded.
In Baltimore, surveillance video from outside a liquor store near a fatal police shooting in April showed discrepancies between what police said happened and what witnesses reported to the media.
One witness claimed the would-be robber, Robert Jerome Howard, ran into the liquor store for safety and was confronted by the off-duty police officer inside the store. Another witness told the media that the officer was “fussing” with Howard. But police officials said the officer’s shooting was justified after the video showed Howard had followed the officer into the store, contradicting the witness claims, before he tried to rob the officer. Police said the gun Howard was holding turned out to be a replica firearm.
Use policies vary – if they exist at all
A recent study done for the Leadership Conference on Civil and Human Rights by Upturn, a Washington, D.C. consulting firm, found a wide range of policies about when and for how long cameras should be turned on; whether officers can review footage before writing their reports, which could skew the results and limit the value of the footage as an accountability tool (most are allowed to see the video before a report is filed); whether they can use facial recognition technology in videos for other investigations (many can); and whether department policies about the use of body cameras are easily accessible by the public.
The report found that as of August, 43 of the 68 major city law enforcement departments were using body cameras and had created written policies to guide their use. But getting access to those policies – never mind viewing the footage – can be a challenge. The report said 24 agencies did not make their policies available on their websites, an omission that “hinders robust public debate about how body cameras should be used.”
Policies about disclosure also vary widely. The Ventura, California, Police Department will provide video only if the requester has a subpoena. In Washington, D.C., the D.C. Open Government Coalition helped persuade Mayor Muriel Bowser to opt for a compromise that allows release for shorter videos that require less time for police to remove certain images – of innocent bystanders, for instance.
“Our argument was simply that the law has adapted to several new technologies over time,” said Kevin Goldberg, who as the then-president of the coalition helped lead the charge to make the videos more accessible to the public.
Pointing to public access for everything from email to security camera footage, Goldberg said he and other advocates were able to convince Bowser and the city council that police videos did not create a new category that would somehow be exempt from the city’s public records law.
“It was very easy to point out the inconsistency,” Goldberg said. “They want to increase public trust in police and oversee bad actors, but not actually let the public be involved at all.”
Five police departments whose practices were examined for the Leadership Conference on Civil and Human Rights study – Cincinnati; Chicago; Las Vegas; Parker, Colorado; and Washington, D.C. – will provide access to someone who appears in a video.
In other communities, officials have been responding more slowly, with many asserting that videos should be viewed differently from other public records because they may invade the privacy of bystanders, or domestic violence victims, or because they may show only part of what occurred so cannot be considered a definitive account.
In Ventura, California, where the police department won’t provide video unless it receives a subpoena from a prosecutor or defense attorney, most of the subpoenaed videos have been handed over to the prosecutor’s office. Civilians face an even higher hurdle – they must get a court order to obtain the footage.
Sara McDonald, a civilian worker with the police department who’s in charge of the video repository in Ventura, said the policy may evolve. But there was a need to get something into place quickly because the department was rolling out its cameras and installing them on uniforms.
“This is a learn-as-you-go type of policy,” she said. The department has had body cameras for about a year.
“It’s a little bit safer to do it at this point by subpoena only,” she said. She handles about 400 videos per day. To redact faces in a five-minute clip could take two hours, she said. “You have to go frame by frame.”
Steve Tuttle, a spokesman for Taser, which has supplied more than 3,500 law enforcement agencies with its Axon body cameras, said the technology has advanced enough to diminish the tension between those who are pushing more public release of videos and those who say it’s too onerous.
With a seek-and-find and redaction system now available, it’s far easier for law enforcement agencies to zero in on one object or figure, use an algorithm to search for it and black it out, he said.
“We make it very simple,” Tuttle said. Images in a one-minute video now can be redacted “in seconds,” he said. Until recently, it took at least six times longer, he said.
But along with more cameras comes more video, which is creating a “tsunami of digital information,” he said. When someone requests a video of an officer’s entire shift, that creates an extreme burden on an agency. Police work is “a lot of walking around. It’s like war. You can go for a week and have a five-minute battle,” Tuttle said.
That is a common lament among police departments. In Seattle, the police body camera program almost died under the pressure of total public disclosure, when one resident requested a massive amount of video to point out the threat to privacy that Washington’s public records law might create.
Under Washington state’s law, the videos would have been released, but culling through them for potential privacy issues or other problems would have taken thousands of hours. Other states have begun to resolve these challenges by writing guidelines for what constitutes a “reasonable” request for footage.
David McClure of the Urban Institute in Washington, D.C., said the speed at which police agencies have acquired cameras has complicated efforts for greater transparency in policing.
“If there had not been controversies with police, we probably would have had a process with vendors putting something out there, departments getting to use the cameras and getting a better understanding of how they work,” he said. Instead, departments still are writing rules and figuring out how to handle footage that can sometimes put the public’s right to know and an individual’s right to privacy in direct conflict.
“In a lot of ways, we are kind of learning as we go, but we are going really fast,” McClure said.
Public pressure often leads to release
Often, the decision to disclose a video of a high-profile incident has come after intense public pressure. In September, in Tulsa, Oklahoma, police quickly released the video of the shooting death of Terence Crutcher, which occurred three days earlier. The officer who fired the shots has been charged with manslaughter.
The police chief in Charlotte, North Carolina – after five days of protests – also released dashboard and body-camera video from the shooting of Keith Lamont Scott. The videos from Sept. 20 incident did not show whether Scott had a gun. Police, who were getting ready to serve an arrest warrant on someone else, say they saw Scott raising the gun in his hand while he was sitting in his car and decided he posed a threat to public safety. In the ensuing confrontation, Scott was killed by police. The prosecutor declined to press charges.
In Los Angeles, police videos generally are being kept under wraps, a policy that some say is a blatant violation of disclosure laws. But Police Chief Charlie Beck maintains that keeping the videos secret is allowed because they are part of the investigatory record in pending cases.
Susan E. Seager, whose journalism students at the University of Southern California attempted to obtain police video from the Los Angeles department but were rebuffed, said she is seeing some movement toward greater disclosure among California police agencies, but it is coming slowly.
“We should not underestimate the value of public pressure,” she said.
In Milwaukee, where two days of rioting broke out in August after police fatally shot Sylville K. Smith, 23, it appears that body camera footage has helped lead to charges against Dominque Heaggan-Brown, a city police officer. But the video itself hasn’t been released, despite the mayor’s support for making it public. In an affidavit released on Dec. 15, officials said Smith “raises the gun upward while looking in the direction of the officers and throws the gun over the fence into the yard.”
“If this case had occurred 10 years ago, or 15 years ago, we would not have that evidence,” Mayor Tom Barrett told reporters. Heaggan-Brown was charged with first-degree reckless homicide, marking only the second time in the department’s history that an officer has been charged with homicide, according to the Milwaukee Journal-Sentinel.
In an earlier interview, Police Chief Edward A. Flynn said he believes most people – law enforcement officers and civilians – “see (police body camera footage) as a useful accountability tool.” And it has value for police, he said.
One way or another, he said, “the police will be the most documented workers in the world when this is all over.”
But whether the public will gain substantial access to that documentation, for now, remains murky.
“We are either invading people’s privacy without any cause at all, or refusing to hold (ourselves) accountable and sharing that with the general public,” Flynn said. “Whatever move you make in either direction, someone is going to be furious with you.”